by Jonathan C. Carlson, Professor of Law, The University of Iowa College of Law. The views expressed are his own.
The Constitution directs the President to nominate persons to fill vacancies on federal courts. No one else is authorized to make judicial nominations. Only the President has that power. The Senate’s role is to consider the President’s nomination and decide whether to approve it. If the Senate gives its advice and consent, the President may appoint the nominee to the federal bench.
This approach to judicial appointments was carefully crafted to create a balance of power between the President and the Senate. The goal, as Alexander Hamilton explained, was to avoid selections based on senators’ “party likings and dislikes, partialities and antipathies, attachments and animosities.”
Senator Chuck Grassley, chair of the Senate Judiciary Committee, evidently doesn’t care for Alexander Hamilton’s Constitution. When two federal judgeships recently opened in Iowa, Senator Grassley decided that he would himself do both the nominating and the approving of the candidates. To this end, Grassley created his own personal “Judicial Selection Commission.” The chair of the commission, to Grassley’s credit, was a well-respected attorney who, as head of the state bar association, had resisted politicization of state judicial retention elections. But, in contrast to nonpartisan judicial nominating commissions used by senators elsewhere, Senator Grassley’s judicial selection commission was otherwise built to serve “party likings.” Four of the five members were longtime Republican Party activists, and the commission’s candidate-screening process reportedly included “pointed questions” of a partisan-litmus-test variety.
President Obama duly nominated the persons selected by Grassley. We can be sure, I think, that Grassley made it clear to Obama that no nominee other than Grassley’s nominees would get a fair hearing in the Senate. We can also be sure that moving on Grassley’s selections was the price Obama paid to secure Senate action on a few of Obama’s own judicial nominees.
But Obama’s gain was minimal. Since February 11, when the second of Grassley’s personal nominees was confirmed, Grassley and the Senate leadership have refused to allow the Senate to vote on any further judicial nominations, even though many nominees have been waiting months for a decision.